M.C. Chagla, Ag. C.J.
1. This is an appeal from an order of conviction and sentence passed by the Presidency Magistrate, Sixth Court, Bombay. He convicted the accused under Section 18 read with Section 7 of the Hoarding and Profiteering Ordinance and sentenced him to a fine of Rs. 10,000, in default rigorous imprisonment for one year.
2. The facts which are not in dispute are that the accused was found in possession of 165 cases of foreign liquor on March 13, 1946, and the case for the prosecution was that under Section 7 of the Ordinance XXXV of 1943 that quantity was more than necessary for the reasonable needs of the accused and his family for a period of three months.
3. It is not disputed by Mr. Kolah for the accused that if the Ordinance applied, being in possession of 165 cases of foreign liquor certainly offended against Section 7 of the Ordinance. It cannot be said that such a large quantity of foreign liquor was necessary for the reasonable needs of the accused and his family. But the contention urged by Mr. Kolah is that looking to Section 17 of the Ordinance we are controlled by the Abkari Act, and not by the Ordinance. Section 17 of the Ordinance provides:- ' The provisions of this Ordinance shall be in addition to and not in derogation of any other law for the time being in force regulating the keeping, storage, distribution, disposal, or price of articles.'
4. The question, therefore, that has to be determined is whether there is any other law which deals with foreign liquor to the extent of regulating its keeping, storage, distribution, disposal or price, and whether the limit of possession specified in Section 7 is in derogation of such other law.
5. The Abkari Act does deal, among other things, with possession of liquor and intoxicating drugs, and under Section 17 the Provincial Government may by notification in the Official Gazette determine a limit of quantity Within which and beyond which the sale of any intoxicant or hemp shall be deemed to be sale by retail and wholesale respectively. This limit of retail sale is important because it affects the right of the, subject to possess hemp or intoxicants and that is regulated by Section 14B and the limit of possession laid down of intoxicants or hemp is the same as the limit of retail sale provided for ins. 17. Therefore, as the law stood on the day the Ordinance: came into force, viz., October 16, 1943, the question of possession of liquor including foreign liquor was regulated by Section 14B of the Abkari Act. Under Section 17 the Government had issued a notification on July 10, 1941, providing for limit of retail sale with regard to various intoxicants, and it is to be noted that they did not provide any limit with regard to retail sale as far as foreign liquor was concerned. Therefore, the position was when the offence is alleged to have been committed, namely, on March 13, 1946, that under the Abkari Act it was open to the accused to possess foreign liquor to an unlimited extent. The Ordinance of 1943 deals with hoarding and profiteering and undoubtedly its object is to restrict and curtail the rights of the subject to possess any particular article or commodity to an unlimited extent. To the extent that it derogates from the rights of a subject the subject can have no grievance, because that is the whole object of the Ordinance. Under Section 7 it is left to the Controller General to apply that section to such articles as he may think proper, and by a notification he has chosen to include in the articles foreign liquor. The question, therefore, is whether apart from derogating from the right of the subject to possess foreign liquor to an unlimited extent, the Ordinance also derogates from any other law which deals with possession of foreign liquor. Under Section 17 the Ordinance may add to any other law in the sense that where the law is silent with regard to any particular provision relating to any particular article it may deal with that subject matter. But it cannot derogate from such law dealing with a particular article which has been made the subject matter of the Ordinance. In our opinion it is the Abkari Act which as a special law deals with the question of possession of liquors and intoxicants including foreign liquor, and as the law stood the subject had the right to possess foreign liquor to an unlimited extent. Therefore any restriction or curtailment of that right to possess given by the special law would undoubtedly be in derogation of that special law.
6. We might test the argument by a certain provision contained in Section 14B of the Abkari Act. Section 14B provides that notwithstanding the limit of possession laid down by that section a person may possess larger quantity provided he obtains a permit from the Collector. Therefore, if a person had a permit from the Collector to possess a much larger quantity than was permissible under Section 14B on the day when the Ordinance came into force, if that quantity was not a reasonable quantity within the meaning of Section 7 of the Ordinance, according to the Government Pleader, that Would constitute an offence. Therefore we would have this position that although the possession was authorised by a permit from the Collector, still under the Ordinance it would be an offence. That in our opinion would be a clear conflict between the Ordinance and the special law dealing with possession of intoxicants, and to the extent that the Ordinance cuts down the limit of possession it would be in derogation of the possession permitted under the special law.
7. The Government Pleader has also argued that Section 17 of the Ordinance does not deal with possession but deals with keeping, storage, distribution, disposal or price of articles. In our opinion possession is included in the expression 'Keeping', and, therefore, when we have a special law dealing with possession, it does fall within the ambit of Section 17 because it does regulate the keeping of that particular article
8. This particular case itself is a very clear illustration of the conflict that may arise between the Ordinance and the special law. According to the facts of this-case the accused came into possession of these cases of foreign liquor on the morning of March 13, 1946. As we have pointed out, under the Abkari Act that possession Was perfectly legal and valid and yet if the Ordinance applied that possession was an offence. Under Section 8a person who has in his possession a quantity of any article exceeding that permitted by the Ordinance has forthwith to report the fact-to the Controller General and he has to take such action as to the storage, distribution or disposal of the excess quantity as the Controller General may direct. The accused in this case was arrested on that very day before any reasonable time was given to him to act under Section 8. It is not as if Section 8 in any sense mitigates the offence constituted by Section 7, but apparently Section 8 gives a sort of locus poenitentiae to the accused, and if he acts under Section 8, Government may not as a matter of policy prosecute him, under the Ordinance. But as far as the law is concerned there can be no doubt that if the Ordinance applied the offence was complete as soon as he came into possession of a quantity of foreign liquor in excess of what is permitted under Section 7 of the Ordinance. This clearly shows that to constitute the possession of the accused on March 18 of foreign liquor an offence under the Ordinance was in derogation of a special law which dealt with that very question of possession under which his possession was innocent, valid and legal.
9. In our opinion, therefore, the decision of the learned Magistrate was not right. We, therefore, allow the appeal, set aside the conviction and sentence and direct that the fine, if paid, should be refunded.
10. The accused is entitled to have the confiscated goods returned to him after he has obtained any permit which may be necessary under the law.